Chesson v. Commissioner

OSCAR CHESSON, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Chesson v. Commissioner Docket Nos. 34467, 43986. United States Board of Tax Appeals 22 B.T.A. 818; 1931 BTA LEXIS 2056; March 19, 1931, Promulgated *2056 1. INCOME - INTEREST - COMMUNITY PROPERTY. - Interest earned during 1923 upon moneys of the petitioner, a resident of Texas, deposited in banks in his name, is community income under the laws of Texas, Willcutt v. Willcutt,278 S.W. 236, and such interest should be reported for income tax purposes, one-half by the petitioner and one-half by his wife. Hopkins, Collector of Internal Revenue v. Bacon,282 U.S. 122. 2. INCOME - ROYALTY OIL - COMMUNITY PROPERTY. - Moneys derived by the petitioner, a resident of Texas, from the sale of royalty oil delivered to the petitioner in kind out of a one-eighth reserve royalty interest under oil leases upon lands, the separate property of the petitioner, are the separate income of the petitioner under the laws of Texas. Stephens v. Stephens,292 S.W. 290. 3. CAPITAL GAIN. - The gain derived from the sale of royalty oil accruing from oil leases upon lands, the separate property of the petitioner, may not be classified as "capital gain" subject to taxation under sections 206 and 208, respectively, of the Revenue Acts of 1921 and 1924. Ferguson v. Commissioner of Internal Revenue, 45 Fed.(2d) 573.*2057 L. J. Benckenstein, Esq., and W. A. Bolinger, Esq., for the petitioner. W. R. Lansford, Esq., for the respondent. TRUSSELL *819 These are proceedings for the redetermination of deficiencies in income taxes determined by the respondent in the following amounts: for 1923, $20,459.13; for 1924, $5,953.68, and are consolidated for hearing and decision. Upon motion the petitioner was permitted to file amended petitions, leaving the claims of the petitioner as follows: (1) with respect to 1923 an amount of $1,733.65, interest received on bank balances and on loans to individuals was community income, taxable one-half to petitioner; (2) with respect to both taxable years, income from certain oil royalties was community income, taxable one-half to the petitioner; and (3) with respect to both years, in the alternative, if not community income, then it was "capital gain" taxable at the special rate provided in the statutes. FINDINGS OF FACT. The petitioner is a citizen of the United States and of Texas, and a resident of Beaumont, Tex. The further facts are all presented by written stipulation of the parties, reading as follows: 1. That*2058 during the year 1923 there was paid to petitioner on moneys of the petitioner deposited in banks, in his name, interest in the amount of $1,733.65. 2. That the petitioner included one-half of the said $1,733.65 interest payment in his income on the theory that the total was community income, whereas the Commissioner has added the other half of said sum to petitioner's income. 3. That attached hereto as Exhibit No. 1 is a true and correct copy of deed from Steve Herd and wife to petitioner for the tract of land therein described out of the William Dyson Headright Survey situated in Orange County, Texas. *820 4. That attached hereto as Exhibits Nos. 2, 3 and 4 are true and correct copies of lease instruments executed by and between the petitioner, as lessor, and T. M. Dodd, Toal Oil and Drilling Company, and Gulf Production Company, as lessees respectively, covering tracts of land as described in said lease instruments out of the tract of land purchased by petitioner and described in Exhibit No. 1. 5. That on June 30, 1920, the petitioner and his present wife were lawfully married at Orange, Texas, and immediately following said marriage went to live on the said*2059 tract of land purchased by petitioner from Steve Herd and wife, as described in Exhibit No. 1, and said petitioner and his wife continued to reside on said property as their homestead until the fall of 1925. 6. That the oil delivered by said lessees during the year 1923, as royalty shares of oil under the lease instruments described in Exhibit Nos. 2, 3 and 4, was sold during 1923 for the sum of $329,203.60, against which sum there are allowable depletion and expense deductions totalling $213,954.12, leaving as taxable income (either ordinary income or "capital gain") for 1923 from this source the sum of $115,249.48. 7. That for the year 1923, the petitioner and his wife filed separate returns, wherein each included one-half of the total income as computed by them on a community basis, the total net income as computed by petitioner and his wife from the royalties in question being $94,501.79. 8. That in the sixty-day letter for 1923 from which this appeal is taken, the Commissioner has added to the income reported by petitioner from the royalties in question, (claiming that said income does not constitute either community income or "capital gain") the net sum of $67,998.58. *2060 9. That the oil delivered by said lessees during the year 1924 as royalty shares of oil under the lease instruments described in Exhibit Nos. 2, 3 and 4 was sold during 1924, so as to net the sum, after allowance for depletion, of $60,830.24, which sum is taxable income (either ordinary income or "capital gain") for 1924. 10. That for the year 1924, the petitioner and his wife filed separate returns, wherein each included one-half of the total income as computed by them on a community basis, the total net income as computed by petitioner and his wife from the royalties in question being $60,830.24. 11. That in the sixty-day letter for 1924, from which this appeal is taken, the Commissioner has added to the income reported by petitioner from the royalties in question (claiming that said income *821 does not constitute either community income or "capital gain") the net sum of $30,415.12. 12. That, from date of its purchase by petitioner in 1904 to the present time, the land from which the royalties were produced, received and sold in 1923 and 1924 has remained and is the separate property of the petitioner. 13. The petitioner has at no time been engaged in*2061 the real estate business. Exhibit 2, lease agreement under date of February 18, 1919, reads, so far as material here, as follows: That I, Oscar Chesson, of the County of Orange and State of Texas have and by these presents do hereby demise, let and lease unto T. M. Dodd hereinafter styled lessee, his successors and assigns, the tracts and parcels of land hereinafter described for the purpose of exploiting the same for and the production of minerals therefrom, and also GRANT, AND CONVEY all of the oil, gas and other minerals in and under the said land, and also the exclusive right of drilling and operating thereon for oil or gas, together with a right-of-way for and the right to lay pipe lines to convey water, oil, steam and gas and the right to have sufficient water, oil and gas from the premises to drill and operate any wells that lessee may bore; and also such other privileges as are reasonably requisite for the conducting of said operations, and the right to remove at any time from said premises, any and all property which may have been placed thereon by said lessee. * * * * * * TO HAVE AND TO HOLD unto the said lessee, his successors, and assigns for the term and under*2062 the provisions as follows, to-wit: * * * THIRD If in the exercise of the right hereby conferred, oil or gas be found in paying quantities, on said land, then the lessee shall deliver as royalty to the said lessor, free of expense, one-eighth (1/8) part of all the oil saved, from that produced, such delivery to be made either in tanks with connections, (by lessee, provided) or into any pipe line that may be connected with the well, and if any well on said premises produces gas in paying quantities, and such gas is used or marketed off the premises by said lessee, then the said lessor shall be paid at the rate of One Hundred ($100.00) dollars per year for each and every well, Such payment to be made at the end of each such year. * * * FIFTH It is expressly declared that if oil or gas or other minerals, or any of them, be found in paying quantities, then said lessee shall become at once vested with an estate in and to all of the minerals underlying the said land with right to reduce the same, or any or all of the same, as long as any one of said minerals shall be produced in paying quantities. *822 Exhibit 3, lease agreement under date of October 7, 1920, reads, *2063 as far as material here, as follows: That we, Oscar Chesson and wife, Thelma Chesson of the County of Orange, State of Texas, hereinafter called lessors, in consideration of the sum of Four Thousand ($4,000.00) Dollars, cash to us in hand paid by the Toal Oil & Drilling Company, a joint stock association of Orange County, Texas, the receipt of which sum is hereby acknowledged, HAVE GRANTED, LEASED AND LET and by these presents, do hereby GRANT, LEASE, LET AND CONVEY unto the said lessee for the purpose of mining and operating thereon for oil and gas, and laying pipe lines, and building of buildings, tanks, stations and structures to produce and take care of all such oil and gas produced as may be discovered thereon. The land and premises to which this instrument does apply being described as follows, * * * * * * In addition to the consideration mentioned heretofore, the lessee agrees to deliver, free of cost, to the lessor, Oscar Chesson, in the pipe line to which any well may be connected on said premises, the equal one-eighth (1/8) part of all oil produced and saved therefrom. Exhibit 4, lease agreement under date of March 13, 1920, reads, as far as material here, as*2064 follows: That I, Oscar Chesson of the County of Orange, State of Texas hereinafter called "Lessor" (whether one or more) have, and by these presents do, hereby lease unto Gulf Production Company, a corporation, hereinafter styled "Lessee" the tract of land hereinafter described, with the right of exploiting the same for, and of producing minerals therefrom; and to that end also grant the exclusive right of drilling and operating thereon for oil, gas or other minerals, together with the rights of way for and the right to lay pipe lines to convey water, oil, steam and gas, and the right to have and use sufficient water, oil, gas and coal from the premises to drill and operate any wells that lessee may bore or shaft lessee may excavate or in treating, so as to make merchantable, any of such minerals; and also such other privileges as are reasonably requisite for the conduct of said operations, and the right to remove at any time from said premises any and all property which may have been placed thereon by said lessee. THIRD If oil shall be found in paying quantities on said premises, the Lessee shall deliver as royalty to said Lessor, free of expense One-sixth (1/6) part of the*2065 oil saved from that produced; Provided, if the Lessor shall own less than the entirety of the premises royalty shall be paid only in the proportion that his ownership is of the whole. Such delivery to be made either into tanks supplied by Lessor, with connections by Lessor provided, or into any pipe line that may be connected with the well; * * * OPINION. TRUSSELL: The first claim of the petitioner is that interest now shown to have been paid to the petitioner in 1923 upon bank deposits *823 of moneys of the petitioner was community income which should be divided for tax purposes one-half to the husband and one-half to the wife. The petitioner and his wife were domiciled in Texas, where under the community property law returns may be filed separately and the respective shares of community income separately reported. . Separate returns were in fact filed and are not questioned as to basis. The question for decision here is whether the entire amount of the interest under consideration was the separate property of the petitioner or belonged one-half to him and one-half to his wife. In answering*2066 this question we follow the local law. The case of , has been accepted as leading in this respect and was cited by this Board in , as authority for a conclusion that rents derived from a farm, the separate property of the husband, belonged to the community. In the Willcutt case it was also decided that interest collected on promissory notes of the husband during coverture was community property, the Court reasoning as follows: It is clear that the interest or increase arising from the personal property of the husband has not been declared separate property by the statute of 1917 (article 4621, Vernon's Tex. Civ. Stats.) and it is therefore unnecessary for this court to pass upon the constitutionality of the law. The Supreme Court, however, has held that the Legislature had the power to make the rents and interest of the wife exempt from community debts made by the husband, but also held that the attempt to make the rents and revenues arising from her lands separate property was unconstitutional*2067 and invalid. . If this be the law, appellant is entitled to her community interest in the rents and revenues arising from the lands of appellee as well as the interest. The sole argument advanced by the respondent in the instant case is that the few facts in evidence are insufficient to enable a determination, but we think that they are sufficient. It is stipulated that the interest was upon moneys of the petitioner, which we understand to mean moneys, the separate property of the petitioner, but if our understanding is incorrect it would simply mean that the moneys were community property and in that event there could be no question but that the interest was community income. Accordingly the net income of the petitioner will be recomputed including therein one-half of the interest and excluding the wife's one-half. The second claim of the petitioner is that royalties received during the taxable years from certain oil leases belonged to the community and should be divided for income tax purposes, one-half to the husband and one-half to the wife. Resulting from operations under three oil and gas lease contracts*2068 entered into February 18, 1919, March 13, 1920, and October 7, 1920, *824 oil was delivered to the petitioner in 1923 and 1924, as royalty shares, payable in kind, of the oil produced and saved out of certain lands, the separate property of the petitioner which he acquired by purchase in 1904, and hence long prior to his marriage, on June 30, 1920, to his present wife. Currently in the years of receipt the royalty oil was sold and there remained over and above the stated allowable deductions certain net income specifically attributable to the transactions, all in amounts as set out in detail in the findings. For 1923 and 1924 the petitioner and his wife filed separate returns wherein each reported one-half of the net income from said sales of royalty oil as belonging to each. The answer to this question depends upon the local law. , has been accepted as a leading case defining the property rights of husband and wife in royalties from the separate property of the husband. See *2069 , and , affirming , in this regard. The opinion of the Court in the Stephens case included the following reasoning which is especially pertinent to the instant case: The land is separate property. The oil in place is realty capable of distinct ownership, severance and sale. It is a part of the corpus of appellee's sole estate. He conveyed his oil and received, as the principal consideration therefor, one-eighth of the production. No skill, labor or supervision of either of the spouses, and no community property was expended in the sale or production. The oil and the proceeds thereof received by the appellee were neither rent nor profits, within the meaning of the law making such common property, but the consideration for separate realty. Extracting the oil from beneath the surface depletes and exhausts forever the corpus of his separate property; removing it to the top of the ground changes it from real to personal property; but such change or mutation, and the money received, are definitely traced, and, *2070 in our opinion, the fund in controversy belonged to appellee in his sole and separate right. See also . We follow these decisions in concluding that the income from the royalties here under consideration belongs to the petitioner and should therefore be reported for income tax purposes in its entirety by the petitioner. For some purposes it is necessary to carefully construe the lease agreement to determine whether the royalty oil was reserved to the lessor, see . We find it unnecessary to do so in the instant case with respect to the second issue, for the reason that a showing that the petitioner retained ownership of the oil would not alter our conclusion that the royalty oil was his separate property. Indeed, it would merely strengthen our conclusion. *825 The third claim of the petitioner is that the income from the royalties should be taxed at the special rates provided for "capital gains" in sections 206 and 208, respectively, of the Revenue Acts of 1921 and 1924. The statutes provide that: The term "capital gain" means taxable gain from*2071 the sale or exchange of capital assets. * * * The term "capital assets" as used in this section means property acquired and held by the taxpayer for profit or investment for more than two years (whether or not connected with his trade or business) * * * Reverting to the findings, we note that the Dodd lease lets the lands for purposes of exploitation and also grants and conveys all of the oil, coupled, however, with a provision for a saving out of all of the oil produced of one-eighth thereof and delivery of the same in kind to the lessor. The other two leases merely grant the right of exploitation, with provision for delivery in kind of one-eighth of the oil produced and saved. With respect to the latter two leases which do not convey the oil, we are constrained to follow prior decisions holding that the royalties are not gain from the sale of capital assets. Cf. ; affd., ; certiorari denied, ; and , affirming in this respect *2072 As pointed out in : The proceeds of minerals, and by minerals we include oil and gas, obtained from mining operations constitute gross income to the owner of the leased premises, and this is true where the minerals are leased. The result of an ordinary mining lease such as we have here is merely to transfer the cost of operations from the owner to the lessee. The operation remains the same and the proceeds of the operation are divided between the lessee and lessor. * * * In , the Court reasoned that: * * * royalties represent the retained interest of the lessor or vendor in the property or minerals which he receives from time to time as revenues under the contract. He did not convey that interest under the deed or lease but provided that he should receive a fraction of the minerals themselves as producted. This part of his capital asset is protected and returned by another provision of the Revenue Act, to-wit, Sec. 241(a) which allows an annual deduction for depletion, based upon production and the estimated life of the*2073 pool or deposit. For this reason the royalties can not be considered as a capital gain. With respect to this issue in the instant case we are not concerned with fine distinctions of ownership under the local law; precisely the question for decision is whether the transactions bring the gain within the "capital gain" provision of the taxing statute. For all practical purposes the operation of the Dodd lease was no different from the operation of the other two leases; alike under all three leases the lessor and lessee shared the proceeds of operation, as they agreed *826 in advance to do, in event oil was found. In our opinion the gain does not come within the intendment of the statute; we prefer the view, quoted above in , that the taxation of the royalties under the Dodd lease is provided for under the ordinary income taxing sections of the statute. We conclude that none of the royalties here under consideration can be considered to be taxable as "capital gain." Cf. *2074 The petitioner cites a number of Texas cases in support of his argument that , cited by us, and also by the Fifth Circuit, in the Ferguson case, did not correctly construe the law of Texas with respect to the property rights of the husband in the royalties, consequently it should be given limited or no application in the instant case. The answer to this is that we think the cases cited by the petitioner all bring into consideration conditions of failure of evidence, commingling of assets, operations mutually conducted by husband and wife, and contributions of the one or the other of influence or of services in producing the income, and for the reasons we do not consider the cases controlling or in point here. Judgment will be entered pursuant to Rule 50.